Kohser v. Protective Life Corporation
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/25/2015. (JLC)
2015 Mar-25 PM 03:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
) Case No.: 2:11-CV-3915-VEH
Introduction and Procedural History
Plaintiff Melissa Kohser (“Ms. Kohser”) initiated this job discrimination case
against Protective Life Corporation (“Protective”) on November 15, 2015, relating
to her demotion and subsequent dismissal from the company. (Doc. 1). Her complaint
contains seven counts: Count One is for discrimination under the federal Age
Discrimination in Employment Act (“ADEA”) (Doc. 1 ¶¶ 35-48); Count Two is for
discrimination under the Alabama Age Discrimination in Employment Act
(“AADEA”) (Doc. 1 ¶¶ 49-54); Count Three is for race discrimination, harassment,
and retaliation under 42 U.S.C. § 1981 (Doc. 1 ¶¶ 55-62); Count Four is for Title VII
gender discrimination (Doc. 1 ¶¶ 63-69); Count Five is for violations of the Equal Pay
Act (Doc. 1 ¶¶ 70-77); Count Six is for negligent and wanton hiring, training,
supervision, and retention (Doc. 1 ¶¶ 78-85); and Count Seven is for conversion.
(Doc. 1 ¶¶ 86-98).
This matter is before the court on the objections (Doc. 60) of Ms. Kohser to
Magistrate Judge John H. England, III’s report and recommendation (the “R&R”)
(Doc. 59),1 which recommends that Protective’s Motion for Summary Judgment
(Doc. 17) (the “Motion”) be granted and that Ms. Kohser’s lawsuit be dismissed with
prejudice. (Doc. 59 at 54). Protective’s Motion, evidentiary materials, and supporting
brief were all filed on January 17, 2013. (Docs. 17-19). Protective made a
supplemental evidentiary submission on January 18, 2013. (Doc. 21). Ms. Kohser
filed her opposition to the Motion on September 5, 2013. (Doc. 44).2 Protective
followed with its reply (Doc. 48) on September 20, 2013.
The R&R was entered on January 13, 2015.3 (Doc. 59). Ms. Kohser’s
objections were filed on January 27, 2015. (Doc. 60). This case was randomly
The parties have not consented to the jurisdiction of the magistrate judge. Therefore, in
accordance with 28 U.S.C. § 636(b), the magistrate judge entered a report and recommendation.
All page references to Doc. 44 correspond with the court’s CM/ECF numbering system.
Prior to deciding the R&R, on January 7, 2015, the magistrate judge entered a
Memorandum Opinion and Order (Doc. 58), addressing several evidentiary issues pertaining to the
record on summary judgment. Ms. Kohser does not object to any of those evidentiary rulings decided
in that Memorandum Opinion and Order.
reassigned to the undersigned judge on January 28, 2015. (Doc. 61). On February 6,
2015, Protective filed a response (Doc. 62) to Ms. Kohser’s objections. The matter,
therefore, is now under submission, and, for the reasons explained below, the court
SUSTAINS Ms. Kohser’s objections IN LIMITED PART, alternatively TERMS
them as MOOT IN PART, and otherwise OVERRULES them. Additionally, the
court ACCEPTS Magistrate Judge England’s R&R as modified herein. Further, the
Motion is due to be GRANTED, and this case is due to be DISMISSED WITH
Summary Judgment Generally
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International Stamp,
456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409,
412 (5th Cir. 2003)).
Employment Discrimination Generally
A plaintiff in an employment discrimination case maintains the ultimate burden
of proving that the adverse employment decision was made because of intentional
discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143,
120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (“Although intermediate evidentiary
burdens shift back and forth under this framework, ‘[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.’” (quoting Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207
(1981))); Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984)
(“A Title VII disparate treatment plaintiff must prove that the defendant acted with
discriminatory purpose.” (citing Clark v. Huntsville City Board of Education, 717
F.2d 525, 529 (11th Cir. 1983))).
Although the Supreme Court has established the basic allocation of burdens
and order of proof in a disparate treatment case, see, e.g., McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Burdine, supra;
Desert Palace v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 56 L. Ed. 2d 84 (2003), that
framework applies only in cases in which there is no direct evidence of
discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.
1987) (“The McDonnell Douglas-Burdine patterns of proof were designed to ease the
evidentiary burdens on employment discrimin[a]tion plaintiffs, who rarely are
discrimination.”(citing Thornbrough v. Columbus and Greenville R.R., 760 F.2d 633,
638 (5th Cir. 1985), abrogated on other grounds by St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 40 (1993))).4
Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden
of proving by a preponderance of evidence a prima facie case of discrimination.
As the Eleventh Circuit has explained, “only the most blatant remarks, whose intent could
be nothing other than to discriminate on the basis of age, . . . constitute direct evidence of
discrimination.” Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989) (citing Barnes v.
Southwest Forest Industries, Inc., 814 F.2d 607, 610-11 (11th Cir. 1987)). Based upon this standard,
Ms. Kohser’s case is, at best, purely a circumstantial evidence one.
Second, once the plaintiff proves a prima facie case, the burden of production shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its
employment decision. Finally, if the defendant carries its burden, the plaintiff must
either prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant are merely a pretext for discrimination or present sufficient
evidence, of any type, for a reasonable jury to conclude that discrimination was a
“motivating factor” for the employment action, even though the defendant’s
legitimate reason may also be true or have played some role in the decision.
McDonnell Douglas, 411 U.S. at 802-05, 93 S. Ct. at 1824-26; Burdine, 450 U.S. at
252-54, 101 S. Ct. at 1093-94; Desert Palace, 539 U.S. at 101-02, 123 S. Ct. at 2155.
The ADEA provides that “[i]t shall be unlawful for an employer . . . to fail or
refuse to hire or to discharge any individual or otherwise discriminate against any
individual with respect to his [or her] compensation, terms, conditions, or privileges
of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In order to
fall under the ADEA’s protections, an employee must be “at least 40 years of age[,]”
29 U.S.C. § 631(a), and the plaintiff “retains the burden of persuasion to establish that
age was the ‘but-for’ cause of the employer’s adverse action.”5 Gross v. FBL
Financial Services, Inc., 557 U.S. 167, 177, 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119
(2009) (emphasis added).
The Eleventh Circuit “has adopted a variation” of the prima facie case standard
articulated by the Supreme Court for Title VII claims in McDonnell Douglas for cases
arising under the ADEA. Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565,
566 (11th Cir. 1992). “Under this variation of the McDonnell Douglas test for
establishing a prima facie case of discrimination, the plaintiff must show that he (1)
was a member of the protected group of persons between the ages of 40 and 70, (2)
was subject to adverse employment action, (3) was replaced with [or not selected for
a position over] a person outside the protected group, and (4) was qualified to do the
job.” Mitchell, 967 F.2d at 566 (citing Verbraeken v. Westinghouse Elec. Corp., 881
F.2d 1041, 1045 (11th Cir. 1989)); see also Standard v. A.B.E.L. Services, Inc., 161
F.3d 1318, 1333 (11th Cir. 1998) (“To establish his prima facie case of
discriminatory failure to promote, Standard must show that (1) he was in a protected
group; (2) he was not given the promotion; (3) he was qualified for the position and
(4) someone outside of the protected group was given the position.” (citing Coutu v.
In contrast to the motivating factor standard that is applicable in some types of Title VII
Martin County Bd. of County Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995))).
“If this is done, the defendant has the burden of going forward and articulating
a legitimate, non-discriminatory rationale for the [adverse employment action].”
Verbraeken, 881 F.2d at 1045. “Finally, if the defendant rebuts the presumption of
discrimination, the plaintiff must prove by a preponderance of the evidence that the
employer’s asserted reason is merely a pretext for a discriminatory [action].” Id.
Ms. Kohser also asserts violations of the AADEA. Claims arising under the
AADEA are analyzed according to the same framework as the ADEA. See Robinson
v. Alabama Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007) (“[T]he federal
courts have applied to AADEA claims the same evidentiary framework applied to
federal age-discrimination claims.”); id. (citations omitted) (“We agree that this
framework . . . is the proper means by which to review an AADEA claim.”).
District Court Review of Report and Recommendation
After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982)
(quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982),6overruled on other
grounds by Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996),
superceded by statute on other grounds as recognized by ACS Recovery Servs., Inc.
v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012)). The district judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions. 28
U.S.C. § 636(b)(1).
A district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep.
No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin.
News 6162, 6163). In contrast, those portions of the R&R to which no objection is
made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F. App’x 781,
784 (11th Cir. 2006).7
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the former
Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982); see also United States
v. Schultz, 565 F.3d 1353, 1361 n.4 (11th Cir. 2009) (discussing the continuing validity of Nettles).
Macort dealt only with the standard of review to be applied to a magistrate’s factual
findings, but the Supreme Court has held that there is no reason for the district court to apply a
different standard to a magistrate’s legal conclusions. Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct.
“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation
marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003)). It is incumbent upon the parties to timely raise any objections that they may
have regarding a magistrate judge’s findings contained in a report and
recommendation, as the failure to do so subsequently waives or abandons the issue,
even if such matter was presented at the magistrate judge level. See, e.g., United
States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (“While Pilati raised the issue
of not being convicted of a qualifying offense before the magistrate judge, he did not
raise this issue in his appeal to the district court. Thus, this argument has been waived
or abandoned by his failure to raise it on appeal to the district court.”). However, the
district judge has discretion to consider or to decline to consider arguments that were
not raised before the magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th
Cir. 2006); see also Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(“Thus, we answer the question left open in Stephens and hold that a district court has
466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a clear-error
standard to both. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373-74 (N.D. Ga. 2006)
(collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes
between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when a magistrate’s
findings of fact are adopted by the district court without objection, they are reviewed on appeal under
a plain-error standard, but questions of law remain subject to de novo review).
discretion to decline to consider a party’s argument when that argument was not first
presented to the magistrate judge.”).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n.8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
rule “would effectively nullify the magistrate judge’s consideration of the matter and
would not help to relieve the workload of the district court.” Williams, 557 F.3d at
1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d
615, 622 (9th Cir. 2000)).
Ms. Kohser’s Introductory Section of Her Objections
The R&R recommends that summary judgment be granted in favor of
Protective on all counts of Ms. Kohser’s complaint. In the introductory section of her
objections, Ms. Kohser only plainly challenges the dismissal of her claims for age and
While Plaintiff objects to the Magistrate Judge’s Report and
Recommendation in its entirety, she particularly objects to the
conclusion that she has not presented sufficient evidence to withstand
summary judgment as to her claims that she was demoted and later
terminated because of her age and/or her sex. Plaintiff contends that,
when the proper summary judgment standard is applied to the evidence,
she has established genuine issues of material fact as to each of her
claims, but particularly as to her claims of discrimination based upon her
age and/or her sex.
(Doc. 60 at 2-3).
Further, the substance of Ms. Kohser’s specific objections are largely limited
to the magistrate judge’s disposition of her age and gender discrimination claims.
First, Ms. Kohser contends that the magistrate judge ignored Protective’s failure to
follow its established procedures before demoting her and terminating her
employment. (Doc. 60 at 11-16). Second, Ms. Kohser complains that the magistrate
judge ignored her own testimony when he found that there was no evidence to show
that she was unaware of any performance issues before Protective demoted her. (Doc.
60 at 17-18).
Third, Ms. Kohser maintains that the magistrate judge improperly used the socalled “same actor” and “same group” inferences when recommending that summary
judgment be granted on Ms. Kohser’s age discrimination claim. (Doc. 60 at 18-22).
Fourth, Ms. Kohser argues that the magistrate judge erred in concluding that
Protective’s decisionmaker had an honest and good faith belief for his employment-
related actions that adversely affected her. (Doc. 60 at 22-28). Fifth, Ms. Kohser
urges that the magistrate judge’s R&R is wrong as a convincing mosaic of facts
establish the existence of gender and/or age discrimination. (Doc. 60 at 28-29).
Finally, Ms. Kohser resists the dismissal of her derivative common-law
negligent training count premised upon the AADEA and concludes her objections as
The Magistrate Judge’s Report and Recommendation should be
rejected in its entirety because it is based upon an erroneous application
of the law. The Magistrate Judge ignored relevant and admissible
evidence presented by the Plaintiff to prove her claims; made credibility
assessments; weighed the evidence; relied upon inferences favorable to
the Defendant and adverse to the Plaintiff; and imposed a heightened
burden of proof on Plaintiff which is not justified under the law.
Plaintiff has presented sufficient evidence to defeat summary judgment
on her claims that she was demoted and terminated because of her age
and/or her sex. Because Plaintiff can establish that she was demoted
and/or terminated because of her age, the Magistrate Judge erred in
recommending that her claim for Negligent/Wanton Hiring, Training,
Supervision, and Retention Claim be dismissed. See King v. CVS
Caremark Corp., No. 1:12-CV-1715-VEH, 2014 WL 868079 (N.D. Ala.
Mar. 5, 2014) (AADEA claim can satisfy the underlying tort
requirement of a negligent/wanton hiring, training, supervision and
For all of the reasons set forth above, and all of the reasons
articulated in Plaintiff’s Response Brief In Opposition To Defendant’s
Motion For Summary Judgment (Doc. 44), Plaintiff prays that the
Report and Recommendation of the Magistrate Judge be rejected in its
entirety and Defendant’s motion for summary judgment be denied.
(Doc. 60 at 29-30).
The court has studied Ms. Kohser’s objections (Doc. 60) and nothing contained
in them specifically contests or otherwise brings into question the analysis conducted
by the magistrate judge in recommending a dismissal of Counts Three, Five and
Seven. Instead, in contesting the R&R “in its entirety,” Ms. Kohser has, at best, raised
merely a generalized objection concerning these counts. As a result, this means that
the magistrate judge’s treatment of them is subject to only clear error scrutiny by this
Further, the court agrees with the contents of the R&R as to these three counts
and concludes that a dismissal of them on summary judgment is appropriate.
Accordingly, Ms. Kohser’s general objection is OVERRULED, those portions of the
R&R dealing with Counts Three, Five, and Seven are ACCEPTED, and those claims
are HEREBY DISMISSED WITH PREJUDICE from Ms. Kohser’s complaint.
Ms. Kohser’s Summary of Facts and Claims
After her introductory section, Ms. Kohser sets out a summary of facts and
claims which spans over ten pages. (Doc. 60 at 3-11). Ms. Kohser’s facts do not
correspond with the statement provided by the magistrate judge in his R&R, fail to
indicate where any of her facts deviate from the R&R, and lack specific citations to
As for support for her version of the facts, in a footnote Ms. Kohser vaguely
This summary is drawn from the various statements of disputed
and undisputed facts contained in the parties summary judgment papers.
Plaintiff refers the Court to Defendant’s Statement of Undisputed
Relevant Material Facts (Doc. 19, pp. iii - xxi), Plaintiff’s response to
those facts (Doc. 44, pp. 9 - 39), Plaintiff’s additional facts (Doc. 44, pp.
39 - 44), and Defendant’s Reply to Plaintiff’s facts (Doc. 48, pp. iv xxiii).
Doc. 60 at 3 n.1.
To the extent that Ms. Kohser’s factual summary can be construed as an
attempted solitary or multifaceted objection to the R&R, it is OVERRULED,
consistent with Nettles, supra, as an ineffective generalized objection under the report
and recommendation process. Nettles, 677 F.2d at 410 n.8. Consequently, the factual
summary provided by the magistrate judge in his R&R is HEREBY ACCEPTED by
Dismissals Directly Disputed by Ms. Kohser
Ms. Kohser directly contests only the proposed dismissal of Counts One (age
discrimination under the ADEA), Two (age discrimination under the AADEA),8 Four
(gender discrimination under Title VII), and Six (negligent training under Alabama
Counts One and Two are subject to the same analytical framework, as the Supreme Court
of Alabama has clarified that age discrimination claims arising under the AADEA borrow from the
ADEA. See Robinson v. Alabama Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007) (“[T]he
federal courts have applied to AADEA claims the same evidentiary framework applied to federal
age-discrimination claims.”); id. (citations omitted) (“We agree that this framework . . . is the proper
means by which to review an AADEA claim.”).
law) in her objections. The court addresses the merits of Ms. Kohser’s objections in
the context of these counts in more detail below.
Ms. Kohser’s Specific Objection Based upon
Protective’s Policies and Procedures
In the first section of her specific objections, Ms. Kohser, citing to several
binding and non-binding authorities, contends that, in recommending summary
judgment in favor of Protective, the magistrate judge improperly failed to factor in
(i) Mr. Bell’s delay in explaining his reasons for demoting Ms. Kohser, and (ii)
Protective’s deviation from its progressive-discipline policy as evidence of age or
gender-related pretext in the decisions to demote and fire her. (Compare Doc. 60 at
12 (“It was only after this interaction with HR that Bell created his reasons to justify
the demotion of Kohser.”), with Doc. 59 at 31 (“[T]he fact the reasons were not
communicated to Kohser [in writing] is not indicative of discrimination.”)).9
In support of her contention that Mr. Bell’s delay in detailing why she was
being demoted is relevant to the issue of pretext, Ms. Kohser cites to the unpublished
panel decision of Mock v. Bell Helicopter Textron, Inc., 196 F. App’x 773 (11th Cir.
2006) for the proposition that “[t]he Eleventh Circuit has held that delays in
Mike Bell (“Mr. Bell”) was hired in March 2008 as the Vice President to head Protective’s
Reinsurance Administration Department. As pointed out in the R&R, “[t]he parties do not discuss,
but appear to have mutually assumed Bell was the decisionmaker for purposes of [Ms.] Kohser’s
claims.” (Doc. 59 at 21). Ms. Kohser does not contest this factual finding in her objections.
explaining the basis for an adverse employment action is [sic] relevant to the issue of
pretext.” (Doc. 60 at 12). The court rejects this part of Ms. Kohser’s objections for
several reasons. First, Mock is merely persuasive authority and, consequently, to the
extent the opinion arguably suggests that any delay in explaining an adverse
employment decision, by itself, is always adequate evidence of pretext, such a
holding is not binding on and is rejected by this court.
Second, Mock involves a significantly distinguishable record. As the panel
explained its pretext analysis in Mock:
At the time Bell informed him [i.e., the plaintiff] that he was being fired,
he insisted that it give him the reason for its decision. Bell refused to do
that. It was not until later, in a letter, that it told him that he had been
terminated for unacceptable performance. In light of Bell’s refusal to tell
Mock-at the time it fired him-why his employment had come to an end,
a trier of fact reasonably could find that the letter constituted a pretext
196 F. App’x at 774.
Ms. Kohser states in her objections that when she “tried to get further
explanation from Bell concerning her alleged deficiencies, Bell refused to provide
any supporting information.” (Doc. 60 at 11 (emphasis added)). In Mock, the plaintiff
reportedly got no information from his employer, while Ms. Kohser maintains that
she was denied a “further explanation” from Mr. Bell. Also, the pages from her
deposition transcript that Ms. Kohser cites to (i.e., Doc. 18-1 at 54-55 at 213-14)10 do
not substantiate any “refusal” on the part of Mr. Bell to provide further support for
his decision to demote her.
As the relevant portions of Ms. Kohser’s deposition transcript from those
pinpointed pages specifically read:
Now do you remember Mr. Bell getting with you at the end of
October to discuss, I guess, the emails you had written him,
wanting to know what you were accused of and micromanaging
and things like that?
Yes, I do.
And you all met on – do you remember when you all met?
I don’t remember the day.
And who was present? Was it you and Mr. Bell?
Me and Mr. Bell.
Do you remember what he said to you during that meeting?
I don’t recall everything that we discussed, but he told me that I
needed to move on and let the past be the past and move on with
my new job duties.
Okay. And did you tell him that you would?
I don’t think that I replied.
The first pinpoint references to Doc. 18-1 correspond with the court’s CM/ECF numbering
You didn’t reply at all?
I don’t recall if I did.
You didn’t say anything in that meeting?
So you walked out of the meeting without saying a word? Did
you go back to work?
I’m sorry. You didn’t say anything during the meeting, did you?
Not that I recall.
(Doc. 18-1 at 54-55 at 213-15 (emphasis added)). Thus, Ms. Kohser’s deposition
testimony fails to establish that she asked Mr. Bell any questions during this October
2010 meeting, much less that he refused to provide her with any answers about her
work-related deficiencies.11 Consequently, Mock is simply inapplicable.
As for Ms. Kohser’s pretext challenge premised upon Protective’s disciplinary
Ms. Kohser also lists several multipage exhibits (without any pinpoint citations or
explanations) which she similarly claims substantiate a “refusal” on the part of Mr. Bell to provide
her with supporting information about her performance deficiencies. However, because Ms. Kohser
fails to describe which portions of these records support her point, the court rejects her position as
underdeveloped. Further, at least one of these cited records includes talking points for the meeting
that Ms. Kohser and Mr. Bell had in October 2010 (Doc. 21-6 at 34 at P’s Ex. 39) and indicates that
Mr. Bell shared with Ms. Kohser “objectives of the restructure” and “a few of the other reasons that
influenced [his] thinking about where to position [Ms. Kohser] in the new structure.” (Id. at 35). This
evidence demonstrates a willingness on the part of Mr. Bell to meet and communicate with Ms.
Kohser, as opposed to an outright refusal to provide any information at the time of the adverse
decision, as stated in Mock.
policy, while the Eleventh Circuit has held that departing from established hiring
policies and procedures may serve as pretext, see, e.g., Morrison v. Booth, 763 F.2d
1366, 1374 11th Cir. 1985) (“Departures from normal procedures may be suggestive
of discrimination.”) (emphasis added), in this instance, the specific wording on the
sample Corrective Action Form relied upon by Ms. Kohser does not require that a
written document always be used.12 (See Doc. 21-4 at 67 (“The ‘form’ format should
be used for non exempt and exempt employees below salary grade 116.”)).
Additionally, as a Rule 30(b)(6) designated witness for Protective, Human
Resources Director Melanie Taylor McNary (“Ms. McNary”) testified, the Corrective
Action Form is not always used for disciplining management level employees, like
Ms. Kohser. (Doc. 21-3 at 10 at 37-38; see id. at 37 (“It does not have to be a threestep process. Managers can skip levels, based on how egregious the performance
deficiencies are; and there may be cases where the form is not used at all.”)). In her
objections, Ms. Kohser makes no effort to factually refute this Rule 30(b)(6) evidence
relied upon by the magistrate judge. Further, in reviewing the record on a de novo
basis and in light of Ms. McNary’s unrebutted testimony about how deviations under
the non-mandatory progressive disciplinary policy were not uncommon for
Alternatively, Ms. Kohser contends that Protective’s disciplinary memo form should have
been used in lieu of a Corrective Action Form before she was demoted and terminated. (See Doc.
21-4 at 72 (attaching sample “Memo” for “Performance and Conduct” issues)).
managerial employees, Ms. Kohser has not adduced evidence from which a
reasonable jury could conclude that Mr. Bell’s treatment of her was a suspicious
anomaly designed to cover up discrimination.
Additionally, while Ms. Kohser passingly asserts that Rita Cook (“Ms. Cook”)
(who the record shows is African-American) is an appropriate comparator of hers
(Doc. 60 at 14 n.2), Ms. Kohser makes no effort to explain how Protective’s
progressive disciplinary treatment of Ms. Cook is probative of pretext as to either her
sex or age discrimination claim. Undoubtedly, Ms. Cook is not a valid comparator for
the purpose of Ms. Kohser’s sex discrimination claim, as she and Ms. Kohser share
the same gender.
As for age, Ms. Kohser does not state in her objections how old Ms. Cook is
and, the mere favorable treatment of another employee, without more, does not
establish valid comparator status. Further, even if Ms. Cook’s age places her outside
of the ADEA’s protected category or establishes that she is “significantly younger”
than Ms. Kohser, Ms. Kohser’s position as a managerial employee means that her
reliance upon Protective’s treatment of a non-managerial employee, such as Ms.
Cook, is not an adequate comparison. As Ms. McNary’s uncontradicted testimony
illustrates, Ms. Kohser and her subordinate employee, Ms. Cook, are not similarly
situated when it comes to treatment under Protective’s progressive disciplinary
policy–the three-step process is not always followed with Protective’s managerial
employees. Cf. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir.
2011) (“Although Mitten pointed to certain preferentially treated black employees in
non-supervisory positions, he failed to identify a more favorably treated black
Therefore, after having conducted a de novo review, for all the reasons stated
above, the first part of Ms. Kohser’s specific objections is OVERRULED.
Ms. Kohser’s Specific Objections Based upon her
In the second section of her specific objections, Ms. Kohser contends that the
magistrate judge improperly failed to factor in evidence, including her affidavit, that
she was never told of any performance issues before her demotion. (See Doc. 60 at
17 (citing to Doc. 59 at 29 n.44)). Ms. Kohser also points out that, in the related
evidentiary Memorandum Opinion and Order (Doc. 58) entered by the magistrate
judge on January 7, 2015, he accepted much of Ms. Kohser’s affidavit, including her
lack of prior knowledge.
In footnote 44 of the R&R, the magistrate judge acknowledges that one
reasonable reading of the record substantiates that her supervisor, Mr. Bell, never
talked to Ms. Kohser about her deficiencies before he demoted her. (See Doc. 59 at
29 n.44 (“At best, this would show there is no evidence he talked with her . . . .”)).
Therefore, the court disagrees with Ms. Kohser’s position that the magistrate judge’s
R&R turns upon an erroneous factual finding that she had knowledge of Mr. Bell’s
concerns about her performance issues in advance of her demotion.
Alternatively, even if the magistrate judge’s R&R disregards the evidence
contained in Ms. Kohser’s affidavit and finds that Ms. Kohser had prior notice of Mr.
Bell’s dissatisfaction with her performance leading up to her demotion and discharge,
such finding is of no consequence because, as the court has already explained above,
Ms. Kohser is unable to substantiate that Mr. Bell treated her less favorably than
others outside of her protected age or gender status under its non-mandatory
progressive disciplinary policy, and whether Ms. Kohser ever actually received a
prior verbal warning or other notice from Mr. Bell about her inadequate performance
is simply a subset of that same analysis.
Accordingly, after having conducted a de novo review, for all the reasons stated
above, the second part of Ms. Kohser’s specific objections is OVERRULED
Alternately, it is TERMED as MOOT, as any purported factual finding by the
magistrate judge about Ms. Kohser’s prior knowledge does not affect the overall
correctness of the magistrate judge’s legal conclusion that Ms. Kohser has not
demonstrated pretext in terms of purported comparator evidence, and the court
ACCEPTS that portion of the R&R.
Ms. Kohser’s Specific Objections Based upon
Concerning her age discrimination claim only,13 Ms. Kohser also specifically
objects that the magistrate judge improperly allowed the same actor and same group
inferences to influence his recommendation to grant summary judgment. In the R&R,
the magistrate judge recites Protective’s position that “an age-discrimination plaintiff
has a higher burden when the alleged decisionmaker is older than the plaintiff.” (Doc.
59 at 49). The magistrate judge also states that “the decisonmaker, Bell, was not only
older than Kosher but was also the same person who promoted her into the position
from which she was demoted.” Id.
In Williams v. Vitro Services Corp., 144 F.3d 1438 (11th Cir. 1998), the
Eleventh Circuit explained the contours of the same actor inference:
The circuit courts have applied varying weights to the strength or
value of the inference that obtains when the hirer and firer are the same
actor. See, e.g., Bradley v. Harcourt, Brace and Co., 104 F.3d 267,
270–71 (9th Cir. 1996) (“[W]here the same actor is responsible for both
the hiring and the firing of a discrimination plaintiff, and both actions
occur within a short period of time, a strong inference arises that there
was no discriminatory motive.”); Brown v. CSC Logic, Inc., 82 F.3d
The remainder of Ms. Kohser’s specific objections focus mostly on the merits of her age
discrimination claim. Consequently, the court concludes that summary judgment is appropriate on
her gender discrimination claim based upon its analysis of Ms. Kohser’s fist and second objections,
and ACCEPTS the R&R in that regard.
651, 658 (5th Cir. 1996) (“This ‘same actor’ inference has been accepted
by several other circuit courts, and we now express our approval.”);
Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959
(4th Cir. 1996) (“[B]ecause Houseman is the same person who hired
Evans, there is a powerful inference that the failure to promote her was
not motivated by discriminatory animus.”) (internal quotation and
citation omitted); E.E.O.C. v. Our Lady of Resurrection Med. Ctr., 77
F.3d 145, 152 (7th Cir. 1996) (“If Boettcher wished to discriminate
against Braddy because of her race, she could have refused to hire her
in the first place, or she could have discharged her because of her
deficient qualifications. Boettcher did neither.... The same hirer/firer
inference has strong presumptive value.”). But see Waldron v. SL
Industries, Inc., 56 F.3d 491, 496 n.6 (3rd Cir. 1995) (“[W]here ... the
hirer and firer are the same and the discharge occurred soon after the
plaintiff was hired, the defendant may of course argue to the factfinder
that it should not find discrimination. But this is simply evidence like
any other and should not be accorded any presumptive value.”).
Although Vitro has pointed to evidence to show that the same
individual responsible for hiring Williams after he already was in the
protected age group was also responsible for promoting him, for
attempting to prolong his stay with Vitro, and, ultimately, for
terminating him, we decline to accord to this “same actor” factual
circumstance a presumption that discrimination necessarily was absent
from the decision to terminate Williams. We nonetheless believe that
these facts may give rise to a permissible inference that no
discriminatory animus motivated Vitro's actions. See Buhrmaster v.
Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995) (“An individual
who is willing to hire and promote a person of a certain class is unlikely
to fire them simply because they are a member of that class. This general
principle applies regardless of whether the class is age, race, sex, or
some other protected classification.”). But within the burden-shifting
framework that has long been established in this circuit with regard to
employment discrimination cases, it is important to reiterate that this
inference is a permissible—not a mandatory—inference that a jury may
make in deciding whether intentional discrimination motivated the
employer’s conduct. . . . .
Based on our consistent precedent, as articulated in Combs, we conclude
that “same actor” evidence of the sort introduced in this instance
constitutes evidence that a jury may consider in deciding the ultimate
issue of intentional discrimination. Evidence that the same actor both
hired and fired the plaintiff, in some circumstances, may help to
convince a jury that the defendant’s proffered legitimate reasons for its
decision are worthy of belief; it is the province of the jury rather than the
court, however, to determine whether the inference generated by “same
actor” evidence is strong enough to outweigh a plaintiff's evidence of
144 F.3d at 1442-43 (emphasis added). Thus, in Williams, the Eleventh Circuit has
made it clear that, within this Circuit, while the same actor inference may be a proper
consideration for a jury, it is not for a court to use when deciding motions for
summary judgment. Consequently, the third portion of Ms. Kohser’s specific
objections to the R&R in this limited regard are SUSTAINED.
The Eleventh Circuit’s treatment of the same group inference is less clear, as
Williams only expressly deals with the same actor inference. The court is unaware of
any binding authority which firmly discusses whether a district court can properly
rely upon the same group inference in granting summary judgment, but several cases
at least persuasively suggest that using such an inference when granting summary
judgment is permissible.
For example in Ehrhardt v. Haddad Restaurant Group, Inc., 443 F. App’x 452
(11th Cir. 2011), an unpublished panel reasoned on summary judgment:
Further, Nabil Haddad and Karabaich, the individuals who made
the decision to demote and ultimately terminated Ehrhardt, were within
the class of people protected by the AADEA. See Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir.1991) (explaining the
plaintiff’s burden to show the discharge is motivated by age is more
difficult when the decisionmaker is also within the class protected by the
ADEA). Ehrhardt presented no evidence that either Nabil Haddad or
Karabaich exhibited any age bias.
Ehrhardt, 443 F. App’x at 456; see also Howard v. Steris Corp., 886 F. Supp. 2d
1279, 1300 (M.D. Ala. 2012) (“And because they were in the same protected [age]
class, it makes it unlikely they would discriminate against him on the basis of a
shared characteristic.” (citing Elrod)).
Similarly, in reversing the judgment entered on a jury verdict in Elrod, the
Eleventh Circuit found that the plaintiff failed to offer “any substantially probative
evidence that age more likely than not motivated his discharge” and further indicated
that the plaintiff “faces a difficult burden . . . because all of the primary players
behind his termination . . . were well over age forty and within the class of persons
protected by the ADEA.” 939 F.2d at 1471. However, Elrod was decided on a trial
record and does not directly address to what degree the same group inference can be
invoked by the court on summary judgment.
However, despite any conceivable legal error committed by the magistrate
judge in relying upon the same actor and same group inferences, the court nonetheless
concludes that summary judgment is still appropriate on Ms. Kohser’s age
discrimination claim due to the absence of sufficient pretext. In an effort to
demonstrate satisfaction of this prong in the context of her age discrimination claim,
Ms. Kohser relies upon what she claims to be examples of age-stereotyping made
about her in the factual portion of Protective’s brief filed in support of its Motion:
A theme which runs through Defendant’s motion is that Kohser was
resistant to change and unwilling to adapt. It starts with the claim that
she did not know the TAI process and did not have a working
knowledge of the TAI side (Doc. 19, ¶ 22) and proceeds from there: she
was resistant to the gorilla project (Doc. 19, ¶ 45); she was interfering
with communications in the department (Doc. 19,¶ 70); she was resistant
to change (Doc. 19, ¶ 77); and she had the inability to learn (Doc. 19, ¶¶
(Doc. 60 at 20 (citing to factual portion of Protective’s brief filed in support of its
Motion)). As her primary legal authority, Ms. Kohser cites to Bienkowski v. American
Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988) as well as other two other later cases
arising in the Fifth Circuit, Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir.
2005) and Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004).14 (Doc. 44
Neither Machinchick nor Rachid helps Ms. Kohser on summary judgment, as they are both
significantly distinguishable due to the high caliber of age-related evidence adduced by each
respective plaintiff. Machinchick included evidence of a “plan to ‘strategically hire some younger
engineers and designers.’” 398 F.3d at 345. Likewise in Rachid, the Fifth Circuit observed:
In the case sub judice, Rachid presents far more evidence of age
discrimination than was presented in Bienkowski. Rachid testified that Powers made
numerous ageist comments-including one situation where Powers allegedly said:
“[A]nd don't forget it, [Rachid], you’re too old, too”-and Haidar supported Rachid's
at 63 n.14).
In Bienkowski, the plaintiff’s “supervisors allegedly commented that
Bienkowski looked ‘sharp’ if he was going to look for another job. The supervisors
also commented on his inability or willingness to ‘adapt’ to new systems in the
department.” 851 F.2d 1503, 1507 n.4. In reversing the district court’s order granting
summary judgment, the Fifth Circuit held:
We conclude that Bienkowski’s evidence is barely sufficient to
create a jury issue of intentional age discrimination. Unlike the district
court, we are unwilling to assume that indirect comments about his age
and adaptability are not possibly probative of an unlawful discriminatory
intent, given the parties’ sharp disagreements over the operative facts of
Bienkowski’s performance. Moreover, live testimony will assist the
necessary credibility choices in this case more effectively than printed
Our conclusion is carefully circumscribed and circumspect,
however. First, Bienkowski has lent his oath to evidence much more
specific than that in previous cases, which have held that a plaintiff's
conclusory testimony of adequate job performance, standing alone, is
insufficient to raise a jury issue of age discrimination. See, e.g., Reeves
v. General Goods Corp., 682 F.2d 515, 524 (5th Cir. 1982); Simmons v.
McGuffy Nursing Home, Inc., 619 F.2d 369 (5th Cir. 1980); Aquamina
assertions that Powers continually made such comments. Rachid even spoke with
human resources prior to his termination to express his fear that Powers would try to
fire him because of his age. Despite JIB’s focus on Teal-Guess’s investigation and
company policy, it was Powers who terminated Rachid, and it was Powers who
repeatedly made ageist comments to and about Rachid. Such comments preclude
summary judgment because a rational finder of fact could conclude that age played
a role in Powers’s decision to terminate Rachid.
Rachid, 376 F.3d at 315-16 (emphasis added).
v. Eastern Airlines, Inc., 644 F.2d 506 (5th Cir. 1981); Dale v. Chicago
Tribune Co., 797 F.2d 458 (7th Cir. 1986); Bohrer v. Hanes Corp., 715
F.2d 213, 219 (5th Cir. 1983). Questions of motivation are necessarily
raised by the affidavits of Bienkowski and his supervisors, whose
renditions of their conversations and meetings with each other differ
diametrically and very specifically.
Second, we do not hold that a verdict for Bienkowski would be
supportable only on evidence that American’s reasons for firing him are
not justified or supported by objective facts. . . .
We do not transgress these principles, because granting
Bienkowski the inferences that may be drawn from the affidavits, a jury
could conclude that his supervisors’ evaluation of his performance
lacked veracity and that their true motivation resided in their age-based
Bienkowski, 851 F.2d at 1507, 1508 (emphasis added).
As the magistrate judge correctly contrasted this record with that before the
Fifth Circuit in Bienkowski, the level of specific evidence presented by Ms. Kohser
concerning the caliber of her job performance is lacking. (Doc. 59 at 50). Thus, Ms.
Kohser simply has not met the Bienkowski standard, regardless of any same actor and
same group inferences. While Ms. Kohser contends in this section of her specific
objections that she “presented at least as much evidence as the plaintiff in
Bienkowski” about her adequate job performance (Doc. 60 at 22), she offers nothing
to specifically substantiate this assertion, and “[s]tatements by counsel in briefs are
not evidence.” Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980).15
Alternatively, to the extent that Ms. Kohser’s meager evidence is enough to
satisfy Bienkowski, the court is not persuaded to follow that authority. Bienkowski is
not binding on this court and, based upon this court’s own independent research, the
Eleventh Circuit has neither cited to Bienkowski favorably nor embraced its “barely
sufficient” formula in finding a triable claim under the ADEA. Cf. Rachid, 376 F.3d
at 315 (“Comments to look ‘sharp’ and comments concerning an employee’s
willingness to ‘adapt’ to new systems are rather nebulous, but they allowed
Bienkowski to avoid summary judgment.”) (emphasis added).
Accordingly, after having conducted a de novo review, for all the reasons stated
above, the third part of Ms. Kohser’s specific objections is SUSTAINED IN
LIMITED PART and otherwise is OVERRULED. Further, the court ACCEPTS
A further problem with Ms. Kohser’s reliance on Bienkowski is that she fails to identify
adequate proof of age-related comments made about her that are attributable to the undisputed sole
decisionmaker, Mr. Bell. Indeed, even Ms. Kohser’s summary of facts contained in her objections
lacks any reference to examples of Mr. Bell’s age-based animus. (Doc. 60 at 3-11). The closest that
Ms. Kohser comes to potentially linking Mr. Bell to a purported ageist comment is her reference to
language contained in Protective’s EEOC position statement (see Doc. 44 at 62, 63; see also Doc.
21-7), which summarizes Mr. Bell’s findings about Ms. Kohser’s deficiencies to include “repeatedly
demonstrat[ing] an unwillingness or inability to adapt to change and to consider and adopt new and
better ways of performing the Red Team’s work.” (Doc. 21-7 at 6). Thus, at best, Ms. Kohser has
identified only one arguably age-based observation made about her by Ms. Bell. In contrast, the
record in Bienkowski included multiple indirect age-based comments made by the plaintiff’s
supervisors and, even there, the Fifth Circuit found such evidence, coupled with a specifically and
sharply contested record of the plaintiff’s job performance to be “barely sufficient to create a jury
issue of intentional age discrimination.” 851 F.2d at 1507.
the R&R’s conclusion (as modified above) that the Motion is due to be GRANTED
on Ms. Kohser’s ADEA (and AADEA) count(s).
Ms. Kohser’s Objection Based upon the Absence
of an Honest Good Faith Belief
The fourth part of Ms. Kohser’s specific objections suggests that summary
judgment is inappropriate because “Bell did not act on the basis of an honest good
faith belief that Kohser was unable to perform her duties when he demoted and later
terminated her.” (Doc. 60 at 27). Ms. Kohser further states that “the [m]agistrate
[j]udge’s conclusion that Defendant has established the good faith belief defense is
erroneous.” (Id. at 28). In asserting this objection, Ms. Kohser fails to reference any
specific pages of the R&R in which she contends the magistrate judge erred.
Consequently, the specific objection is OVERRULED as underdeveloped.
The objection is also OVERRULED substantively. In particular, Ms. Kohser
seems to be asking this court to disregard or discount the honest belief rule on
summary judgment. (See, e.g., Doc. 60 at 23 (“One fundamental flaw with the socalled ‘honest belief rule’ at the summary judgment stage is that, by definition, it
requires the Court to assess the credibility of witnesses.”)).
However, as explained in Elrod v. Sears, Roebuck and Co., 939 F.2d 1466
(11th Cir. 1991), the honest belief rule is a binding employment law principle within
the Eleventh Circuit that deserves consideration on summary judgment.
Federal courts “do not sit as a super-personnel department that
reexamines an entity’s business decisions. No matter how medieval a
firm’s practices, no matter how high-handed its decisional process, no
matter how mistaken the firm’s managers, the ADEA does not interfere.
Rather, our inquiry is limited to whether the employer gave an honest
explanation of its behavior.” Mechnig v. Sears, Roebuck & Co., 864
F.2d 1359, 1365 (7th Cir. 1988) (citations omitted). “[F]or an employer
to prevail the jury need not determine that the employer was correct in
its assessment of the employee’s performance; it need only determine
that the defendant in good faith believed plaintiff’s performance to be
unsatisfactory....” Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323
n. 4 (11th Cir. 1982) (emphasis in original). See also Jones, 874 F.2d at
1540; Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53 (11th Cir.
1987) (“[I]f the employer fired an employee because it honestly believed
that the employee had violated a company policy, even if it was
mistaken in such belief, the discharge is not ‘because of race’ and the
employer has not violated § 1981.”).
Elrod, 939 F.2d at 1470.
Further, the magistrate judge appropriately described and relied upon the
honest belief rule in his R&R. (See Doc. 59 at 51 (“Although Kohser has presented
her own testimony to support her contention Bell’s reasons for demoting and
terminating her were erroneous, she has been unable to present evidence leading to
a reasonable inference Bell, the decisionmaker, did not have a good faith belief in the
truth of his reasons, which is the question relevant to his intent.”)).
Accordingly, after having conducted a de novo review, for all the reasons stated
above, the fourth part of Ms. Kohser’s objections is OVERRULED. Further, the
court ACCEPTS the R&R’s conclusion that the Motion is due to be GRANTED on
Ms. Kohser’s age discrimination claim.
Ms. Kohser’s Specific Objection Based upon a
Purported Mosaic of Convincing Evidence
Ms. Kohser alternatively contends that, regardless of her ability to satisfy the
more common comparator evidence model, a convincing mosaic of a facts establishes
a material factual dispute about Protective’s discriminatory intent in its treatment of
her. (Doc. 60 at 28); see also Smith, 644 F.3d at 1328 (“A triable issue of fact exists
if the record, viewed in a light most favorable to the plaintiff, presents ‘a convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.’” (footnote omitted) (emphasis added) (quoting
Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011))).16
However, in an attempt to validate her gender and age claims under this
convincing mosaic framework, Ms. Kohser merely points out that a male took over
In Smith, the Eleventh Circuit reversed the district court’s order granting summary
judgment even though the panel confirmed that the plaintiff’s comparator evidence was lacking. 644
F.3d at 1327 (“In his brief to this court, he repeats the argument he presented to the district
court—that he does not need a black supervisor comparator because the record contains sufficient
circumstantial evidence to create a triable issue of fact as to whether Lockheed fired him because he
is white.”); see id. (“We agree and find that the district court erred in granting Lockheed summary
judgment.”); see also id. 1328 (“Here, Mitten did not need to rely on the McDonnell Douglas
presumption to establish a case for the jury.”); see also id. (“As the following discussion explains,
the record contained sufficient evidence to allow a jury to infer that Lockheed fired Mitten because
he is white.”).
her duties and that Protective (incorrectly, according to Ms. Kohser) claims “that she
was unwilling to adapt to change.” (Doc. 60 at 29). As explained in more detail
below, these parts of the record do not reasonably create a triable inference of gender
or age discrimination. Cf. Smith, 644 F.3d at 1328 (“Yet, no matter its form, so long
as the circumstantial evidence raises a reasonable inference that the employer
discriminated against the plaintiff, summary judgment is improper.”) (emphasis
For example, merely because a male employee subsequently assumed her job
duties, this fact, alone, does not create a reasonable inference that Mr. Bell demoted
and fired Ms. Kohser on the basis of her gender. Instead, given Mr. Bell’s
performance-related explanation for his treatment of Ms. Kohser and in the absence
of a suitable comparator, more circumstantial evidence of a gender bias on the part
of Mr. Bell or some other gender-driven proof would be needed for a reasonable jury
to infer the existence of gender discrimination under Smith’s mosaic model.17 Ms.
The Eleventh Circuit summarized the pieces of race-related evidence in Smith to include:
The foregoing circumstantial facts preclude summary judgment in this case
as a jury reasonably could infer that Lockheed only fired Mitten because he is white.
The evidence yields this inference because it: (1) suggests that Lockheed's
justification for firing Mitten is a pretext for racial animus; (2) shows that Lockheed
had a substantial incentive to discipline white employees more harshly than black
employees in the summer of 2005; and (3) indicates clearly that Lockheed
consciously injected race considerations into its discipline decision making without
an adequate explanation for doing so.
Kohser’s evidence falls short of creating such a triable gender claim.
As for her age claim, Protective has taken the position in its brief as well as in
other parts of the record that Ms. Kohser was “resistant to changes.” (Doc. 19 at 15
¶ 77 (citing Doc. 18-1 at 49 at 166-69; Doc. 21-2 at 27-31 at Ex. 36)).18 While in
opposing Protective’s Motion Ms. Kohser disputes this fact as conclusory,
mischaracterizing of testimony, and lacking in foundation (Doc. 44 at 33 ¶ 77), she,
in turn, attempts to rely on this same description of Ms. Kohser’s deficient
performance as circumstantial evidence of Mr. Bell’s ageist attitude about her. (Doc.
60 at 29).
However, the particular underlying evidence relied upon by Protective in an
effort to substantiate this factual contention has nothing to do with Mr. Bell or any
arguably age-driven comments that he (or any other employee) made about Ms.
Kohser. Instead, Protective references only Ms. Kohser’s own deposition testimony,
(which describes her dealings with Tonya Pettis (“Ms. Pettis”) over the preparation
of Protective’s Schedule S to be filed with regulatory agencies), and contends that this
evidence underscores Ms. Kohser’s resistance to change. (See Doc. 18-1 at 49 at 16669; see also Doc. 21-2 at 27-31 at Ex. 36 (attaching email communications between
644 F.3d at 1340. Ms. Kohser’s purported discriminatory proof is considerably less.
The first pinpoint references for Doc. 21-2 correspond with the court’s CM/ECF
Ms. Kohser and Ms. Pettis about Schedule S)).
Relying upon Protective’s factual contention made in its brief to
circumstantially show Mr. Bell’s discriminatory age-based intent misses the mark in
several respects. First, this factual contention offered in a brief is not evidence, but
rather only Protective’s lawyer’s characterization of the evidence. Second, the critical
inquiry in this circumstantial evidence case is whether Mr. Bell, the undisputed sole
decisionmaker, ever expressly made any discriminatory comments or otherwise
demonstrated a discriminatory animus from which a reasonable jury could infer the
existence of age discrimination. Cf., e.g., Steger v. General Elec. Co., 318 F.3d 1066,
1079 (11th Cir. 2003) (“A decision maker’s discriminatory comment which may not
qualify as direct evidence of discrimination may constitute circumstantial evidence
which could assist a jury in disbelieving the employer’s proffered reasons for the
Here, Ms. Kohser has only linked one nebulous arguably age-related
assessment of her by Mr. Bell. See court’s discussion of Protective’s EEOC position
statement at 31 n.15, supra. Ms. Kohser has not developed a record from which a
reasonable jury could conclude that Mr. Bell’s had an age-focused bias that infused
the decisionmaking process.19 Thus, in the absence of a reasonable inference that Mr.
Bell discriminated against her on the basis of her age, Ms. Kohser has not met Smith’s
mosaic standard on that claim either.
Instead, granting summary judgment on Ms. Kohser’s gender and age claims
is consistent with the Supreme Court’s decision in Reeves:
Thus, a plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully
This is not to say that such a showing by the plaintiff will always
be adequate to sustain a jury’s finding of liability. Certainly there will
be instances where, although the plaintiff has established a prima facie
case and set forth sufficient evidence to reject the defendant’s
explanation, no rational factfinder could conclude that the action was
discriminatory. For instance, an employer would be entitled to judgment
as a matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff
created only a weak issue of fact as to whether the employer’s reason
was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.
Reeves, 530 U.S. at 148, 120 S. Ct. at 2109 (emphasis by underlining added).
Here, to the extent that Ms. Kohser has created an issue of fact about the
truthfulness of Mr. Bell’s decision to demote and fire her, she has, at best, only shown
The treatment of Ms. Cook under Protective’s disciplinary policy does not help Ms.
Kohser under the mosaic model either, as Ms. Kohser was the decisionmaker in that instance, not
a weak dispute or a weak mosaic of discriminatory evidence. Further, the record
otherwise confirms that Mr. Bell’s decision was free from any considerations of Ms.
Kohser’s age or gender.
Accordingly, after having conducted a de novo review, for all the reasons stated
above, the fifth part of Ms. Kohser’s specific objections is OVERRULED. Further,
the court ACCEPTS the R&R’s conclusion that the Motion is due to be GRANTED
on Ms. Kohser’s age and gender discrimination claims.
Ms. Kohser’s Specific Objection Based upon
Negligent and Wanton Hiring, Training,
Supervision, and Retention
Finally, within the conclusion of her objections, Ms. Kohser states that
“[b]ecause [she] can establish that she was demoted and/or terminated because of her
age, the Magistrate Judge erred in recommending that her claim for
Negligent/Wanton Hiring, Training, Supervision, and Retention Claim be dismissed.”
(Doc. 60 at 29-30).
Because this court has concluded de novo that Ms. Kohser has no triable age
discrimination claim, it agrees with the magistrate judge that “her derivative claim
[premised upon the AADEA] for negligent/wanton hiring, training, supervision, and
retention is due to be DISMISSED.” (Doc. 59 at 53).
Accordingly, after having conducted a de novo review, for all the reasons stated
above, the sixth part of Ms. Kohser’s objections is OVERRULED. Further, the court
ACCEPTS the R&R’s conclusion that the Motion is due to be GRANTED on Ms.
Kohser’s claim for negligent/wanton hiring, training, supervision, and retention
arising under Alabama law.
For the reasons set out above, the court SUSTAINS IN LIMITED PART,
alternatively TERMS as MOOT IN PART, and otherwise OVERRULES Ms.
Kohser’s objections. The court further ACCEPTS the R&R as modified herein.
Accordingly, Protective’s Motion (Doc. 17) is due to be GRANTED, and Ms.
Kohser’s case is due to be DISMISSED WITH PREJUDICE. The court will enter
a separate final judgment order consistent with this memorandum opinion.
DONE and ORDERED this the 25th day of March, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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